Massachusetts Wage Claims Archives - Ortiz & Moeslinger, P.C.

If you’ve ever worked as a server or bartender at a restaurant, you’ve likely experienced a dreaded part of the job: side work. Whether it is rolling silverware, topping off ketchup bottles, or cleaning your section, nobody likes side work. However, a recent update in Massachusetts law offers a silver lining: your employer must pay you $15 per hour for side work as opposed to the lower service rate of $6.75 per hour.

In Massachusetts, the basic minimum wage is $15 per hour. However, so long as certain requirements are met, employers can pay service employees (such as servers and bartenders) a $6.75 “service rate.” Generally, if the service rate plus the employee’s tips equal at least $15 per hour, the employer does not need to pay anything more than $6.75 per hour.

However, a recent opinion letter from the Massachusetts Department of Labor Standards (DLS) – the agency tasked with enforcing the minimum wage law – has made an important clarification: employers must pay service employees $15 per hour for side work and other non-service work regardless of the amount of tips they receive.

In the opinion letter, the DLS explains that an employer can only pay the service rate of $6.75 per hour for “Tipped Work,” meaning service work performed directly for a customer, such as serving food or beverages or clearing a customer’s table. For all other work – “Non-Tipped Work” – the employer must pay the employee the basic minimum wage of $15 per hour, even if, when combined with the employee’s tips, they are receiving in excess of the basic minimum wage.

The DLS provided a helpful example:

[T]ake an employee who does kitchen prep work for one hour, waits tables for six hours, and cleans for one hour during the same workday. Assuming the employer otherwise meets the requirements […], the employer can pay the Service Rate to the employee for the six hours that the employee waits tables, as long as the tips that employee receives, either directly or through a tip pool, equal or exceed the minimum wage. However, the employer would have to pay the employee at least minimum wage for the two hours that the employee performed Non-Tipped Work, even if the employee had made more than minimum wage from the combination of the Service Rate and the tips during the six hours of Tipped Work.

If you work as a server, bartender, or other service employee and you do not receive at least $15 per hour for side work or other Non-Tipped Work, contact us:

Phone: (617) 338-9400
Email: [email protected]

We will assess your case at no charge.

Unpaid wage law continues to develop in Massachusetts. Most recently, the Supreme Judicial Court (“SJC”) provided extensive guidance on what constitutes a valid deduction from wages–called a “valid set-off” in the law. In Camara v. Attorney General, 458 Mass. 756 (2011), the employer was a garbage collection and recycling company in New Bedford. It found that its drivers would sometimes damage the trucks and/or people’s property in the course of doing their jobs. It designated an employee to investigate incidents involving property damage, and if the accident was deemed to be due to the employee’s fault, gave the employee a choice: accept job discipline or pay the damages via a wage deduction. The Massachusetts Attorney General investigated and issued a citation to the employer. Appeals followed, and the SJC took the case.

The SJC found against the employer and expended some considerable effort to draw lines of what would be permissible as wage set-offs in Massachusetts. The crux of the decision in Camara was that the employer had carte blanche to make a final, unreviewable decision about the employee’s fault and impose either discipline or a wage set-off. The SJC did not find that this set-off was “valid” under the law because of the lack of due process for the employee, which fell far below what a person in the dock for negligence would be afforded. As the court put it, the law “does not support the proposition that such liability may exist solely by virtue of an employer’s pronouncement, without any need for independent determination or adjudication.”

However, some wage set-offs apart from tax deductions, retirement plan contributions, union dues, and judicial wage attachments are valid under Massachusetts law. Some examples cited by the attorney general are:

Where there is proof of an undisputed loan or wage advance from the employer to the employee; a theft of the employer’s property by the employee, as established in an “independent and unbiased proceeding” with due process protections for the employee; or where the employer has obtained a judgment against the employee for the value of the employer’s property.

The SJC went on to say:

We do not understand the Attorney General to be arguing that these are the only types of setoffs that are permissible under § 150; if that is her point, we do not agree with it. There well may be other circumstances — for example as part of a collective bargaining agreement — in which an employer and employee enter into a set-off arrangement that does not involve formal judicial or administrative proceedings but that would be valid because it can be shown that the parties have voluntarily agreed to a set of appropriately independent procedures for determining, in a manner that adequately protects the employee’s interests, both the existence and amount of the debt or obligation owed by the employee to the employer.

The SJC alluded to the fact that the employer’s policy in Camara was very effective, stating: “Between 2003 and 2006, ABC’s costs attributable to damage done to vehicles and personal property has been reduced by seventy-eight per cent.” However, the bottom line is that Massachusetts law holds employee wages sacrosanct, and right or wrong, employers must think twice before getting creative with wage deduction policies.

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Massachusetts Clarifies Tipped Wage Rules: When Side Work Must Be Paid at $15 per Hour

What Is a “Valid Set-Off” Under the Massachusetts Wage Act?